United States District Court, D. Kansas
WILLIE L. GARRETT, Petitioner,
N.C. ENGLISH,  Warden, USP-Leavenworth, Respondent.
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, a prisoner in federal custody at
USP-Leavenworth, proceeds pro se. Petitioner challenges his
designation as a career offender. The Court has screened his
Petition (Docs. 1, 2) under Rule 4 of the Rules Governing
Habeas Corpus Cases, foll. 28 U.S.C. § 2254, and
dismisses this action without prejudice for lack of statutory
February 8, 1996, Petitioner was sentenced following a jury
trial in the Western District of Missouri to 360 months'
imprisonment and five years' supervised release, for
conspiracy to possess with intent to distribute and
distribution of cocaine and cocaine base in violation of 21
U.S.C. § 846, and aiding and abetting the possession
with intent to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B). United States v.
Garrett, No. 4:94-cr-00178-SOW (W.D. Mo.) (Doc. 102).
Petitioner appealed, claiming the district court failed to
comply with the requirements of Fed. R. Crim. P. 32(c)(1).
United States v. Garrett, No. 96-1477, 108 F.3d 1382
(Table), 1997 WL 139759 (8th Cir. March 28, 1997). The Eighth
Circuit affirmed the judgment of the district court.
filed a § 2255 motion on June 22, 1998. The district
court denied the motion on November 2, 1998. See Garrett
v. United States, 195 F.3d 1032 (8th Cir. 1999)
(dismissing appeal). Petitioner filed a Motion for Sentence
Reduction pursuant to Amendment 706 on June 4, 2008.
United States v. Garrett, No. 94-cr-00178-SOW (W.D.
Mo.) (Doc. 149). The district court denied the motion on
April 16, 2009. Id. at Doc. 155. On December 2,
2011, Petitioner filed a Motion for Sentence Reduction
pursuant to Amendment 750, which was denied on February 5,
2013. Id. at Docs. 168, 170.
25, 2018, Petitioner filed the instant petition under 28
U.S.C. § 2241, arguing that his prior convictions do not
qualify him as a career offender in light of the decisions in
Mathis v. United States, 136 S.Ct. 2243 (2016),
United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016), and Holt v. United States, 843 F.3d 720 (7th
Cir. 2016), thus entitling him to resentencing without the
career offender enhancement. Petitioner invokes the savings
clause of § 2255(e), arguing that § 2255 is
inadequate or ineffective to test the legality of his
Court must first determine whether § 2241 was the proper
vehicle to bring Petitioner's claims. Because “that
issue impacts the court's statutory jurisdiction, it is a
threshold matter.” Sandlain v. English, 2017
WL 4479370 (10th Cir. Oct. 5, 2017) (unpublished) (finding
that whether Mathis is retroactive goes to the
merits and the court must first decide whether § 2241 is
the proper vehicle to bring the claim) (citing Abernathy
v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013)).
federal prisoner seeking release from allegedly illegal
confinement may file a motion to “vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). A
motion under § 2255 must be filed in the district where
the petitioner was convicted and sentence imposed. Sines
v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010).
Generally, the motion remedy under 28 U.S.C. § 2255
provides “the only means to challenge the validity of a
federal conviction following the conclusion of direct
appeal.” Hale v. Fox, 829 F.3d 1162, 1165
(10th Cir. 2016), cert. denied sub nom. Hale v.
Julian, 137 S.Ct. 641 (2017). However, under the
“savings clause” in § 2255(e), a federal
prisoner may file an application for habeas corpus under 28
U.S.C. § 2241 in the district of confinement if the
petitioner demonstrates that the remedy provided by §
2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e).
argues that he is entitled to relief due to a new
interpretation of statutory law that is made retroactive,
citing Mathis, Hinkle, and Holt.
When a petitioner is denied relief on his first motion under
§ 2255, he cannot file a second § 2255 motion
unless he can point to either “newly discovered
evidence” or “a new rule of constitutional law,
” as those terms are defined in § 2255(h).
Haskell v. Daniels, 510 Fed.Appx. 742, 744 (10th
Cir. 2013) (unpublished) (citing Prost v. Anderson,
636 F.3d 578, 581 (10th Cir. 2011)).
not appear that Petitioner sought authorization from the
Eighth Circuit to file a second or successive § 2255
motion, nor does he argue that the cases he relies on are
“a new rule of constitutional law.” Regardless,
preclusion from bringing a second motion under § 2255(h)
does not establish that the remedy in § 2255 is
inadequate or ineffective. Changes in relevant law were
anticipated by Congress and are grounds for successive
collateral review only under the carefully-circumscribed
conditions set forth in § 2255(h). The Tenth Circuit has
rejected an argument that the “current inability to
assert the claims in a successive § 2255 motion-due to
the one-year time-bar and the restrictions identified in
§ 2255(h)-demonstrates that the § 2255 remedial
regime is inadequate and ineffective to test the legality of
his detention.” Jones v. Goetz, No. 17-1256,
2017 WL 4534760, at *5 (10th Cir. 2017) (unpublished)
(citations omitted); see also Brown v.
Berkebile, 572 Fed.Appx. 605, 608 (10th Cir. 2014)
(unpublished) (finding that petitioner has not attempted to
bring a second § 2255 motion, and even if he were
precluded from doing so under § 2255(h), that
“does not establish the remedy in § 2255 is
inadequate”) (citing Caravalho v. Pugh, 177
F.3d 1177, 1179 (10th Cir. 1999) and Prost, 636 F.3d
at 586). If § 2255 could be deemed “inadequate or
ineffective” “any time a petitioner is barred
from raising a meritorious second or successive challenge to
his conviction-subsection (h) would become a nullity, a
‘meaningless gesture.'” Prost, 636
F.3d at 586; see also Hale, 829 F.3d at 1174
(“Because Mr. Hale cannot satisfy § 2255(h), he
cannot, under Prost, satisfy § 2255(e), and
§ 2241 review must be denied.”).
acknowledges that the decision in Mathis is a new
interpretation of statutory law. The AEDPA “did not
provide a remedy for second or successive § 2255 motions
based on intervening judicial interpretations of
statutes.” Abernathy v. Wandes, 713 F.3d 538,
547 (10th Cir. 2013), cert. denied 134 S.Ct. 1874
(2014). However, prisoners who are barred from bringing
second or successive § 2255 motions may still be able to
petition for habeas relief under the savings clause in §
2255(e). Id. However, § 2255 has been found to
be “inadequate or ineffective” only in
“extremely limited circumstances.” Id.
Tenth Circuit has held that “it is the infirmity of the
§ 2255 remedy itself, not the failure to use it or to
prevail under it, that is determinative. To invoke the
savings clause, there must be something about the initial
§ 2255 procedure that itself is inadequate or
ineffective for testing a challenge to
detention.” Prost, 636 F.3d at 589. “The
savings clause doesn't guarantee results, only process,
” and “the possibility of an erroneous result-the
denial of relief that should have been granted-does not
render the procedural mechanism Congress provided for
bringing that claim (whether it be 28 U.S.C. §§
1331, 1332, 2201, 2255, or otherwise) an inadequate or
ineffective remedial vehicle for testing
its merits within the plain meaning of the savings
clause.” Id. (emphasis in original).
argues that he meets the savings clause tests adopted in
other circuits. Doc. 2, at 13 (citing Hill, 836 F.3d
at 595). However, the Tenth Circuit has addressed the
question of “whether a new Supreme Court decision
interpreting a statute that may undo a prisoner's
conviction renders the prisoner's initial § 2255
motion ‘inadequate or ineffective.'”
Haskell, 510 Fed.Appx. at 744. The Tenth Circuit
answered the question in the negative in Prost,
holding that if “a petitioner's argument
challenging the legality of his ...